Maxmilian Wechsler investigates the murky but highly lucrative world of music copyright

ALMOST anywhere you go in Bangkok – malls, department stores, restaurants, outdoor markets, small shops, bowling alleys, and especially entertainment venues like pubs or discotheques – you’ll hear music, recorded and performed live. It’s a way of life here. But what few people outside the business know is thatcopyrighted music cannot be played legally in a commercial setting without the permission of the copyright holder, which, under the 1994 Copyright Act, normally involves the payment of royalties. The payment of these fees has opened an opportunity forcorrupt officials and imposters to extort money frombusinesses playing copyrighted music. In some cases TVs, computers, sound systems and other equipment are seized in lieu of payment.

Shaking down businesses under the guise of copyright protection has been going on for years and has developed into a lucrative occupation. The criminals see it as an easy way to make money and considering the many thousands of locations playing copyrighted music all over the country, it is extremely difficult to eliminate.

Law enforcement officers say that to avoid problems with the copyright owners and to minimize profits of the criminals, anybody playing copyrighted music outside their homes should pay royalties. That’s unlikely to happen, of course.

Besides, copyright holders as well as the extortionists are more likely to go after big venues.

History of copyright

protection in Thailand THE first copyright laws were introduced in 1892 during the reign of King Rama V, who proclaimed that the Royal Library Committee had the sole authority to copy and publicize the Royal Decree. In 1901 the first step was taken toward protecting all authors and their works with the Ownership of Authors Act.

In 1931 the Act for the Protection of Literary and Artistic Works was put into effect, protecting for the first timescientific, artistic and foreign works.

Almost 50 years later, in 1978, the Copyright Act included protection for additional categories of materials, and also increased penalties for infringement. The Act was revoked and replaced by the 1983 Copyright Act. This Act was in turn replaced by the 1994 Copyright Act, which is still in effect.

In 1992 the Department of Intellectual Property (DIP) was created under the Ministry of Commerce to oversee and cooperate with all relevant IP agencies in Thailand and abroad. The Central Intellectual Property and International Trade Court (IP&IT) was inaugurated on December 1, 1997 in Bangkok.

This court has a nationwide jurisdiction to adjudicate cases concerning IP and international trade.

Bangkok survey

TO FIND out whether business owners in Bangkok are aware that infringement of music copyright laws could lead to fines or arrest, we sent two Thai reporters to conduct an informal survey.

Out of 65 locations visited, 34 of the proprietors or staff surveyed refused to answer. Only nine places said they do pay royalties to different copyright owners. The remaining 22 said they know they should pay royalties but don’t, even though some confessed to being visited by officials on this matter.

Most people said they can’t afford to pay the royalties. Seven people said they had been approached by “extortionists” without saying who they were.

The reporters said they had the impression that all of those interviewed know about the law but most ignore it. They added that most of the people contacted were generally uncooperative; some initially suspected they were being targeted for money.

Calls to DIP and MPC

PAYMENT of royalties and related information is available through the Department of Intellectual Property (DIP)Copyright Office, Tel 02 547 4633 and 02 547 4634.

Meanwhile, a “collecting management organization” known as MPC Music Co (www.mpcmusic.co.th. Tel 02 641 52113) is solely responsible for collecting royalties for international music in Thailand. Over 30 other organizations collect royalties only for Thai music.

A senior executive of MPC said his organization is a nonprofit company set up to collect public performance royalty fees for the use of international musical and sound recording works. In a written memo, he said: “We are looking after both copyrighted musical works for song writers and composers as well as recorded works for major labels like Sony Music, EMI, Universal Music and Warner Music. We have more than 800,000 songs declared and registered legally abiding to the laws and regulations of the Ministry of Commerce.

“We are the first and longest collecting society set up in the world. We work closely with the DIP and try to regulate the management and unify the collecting society in Thailand. Currently, there are 32 collecting companies established in Thailand.

Off the record with a police officer

A POLICE officer involved in the suppression of intellectual property infringements for many years at first agreed to speak on the record and even to have his picture taken, but after few questions he changed his mind and requested anonymity.

The officer said that music and other copyright violations are enforced in Thailand by the local police, the Economic Crime Suppression Division (ECD) and by the Department of Special Investigation (DSI).

“The authorities – mainly police – have increased suppression efforts of copyright infringement since the 1994 Copyright Act came into effect. This law is different from previous laws in that it covers computer programs, literary works and databases. Alsothe rights of the performers were added among other laws to protect the copyright owners. The penalties for violators were also increased,” explained the officer, adding that it is “very hard to say” what establishments are the biggest music copyright infringers because it is so widespread in Thailand.

“Unfortunately, the copyright law in Thailand allows the injured party to negotiate a settlement with the offender out of court. This is not possible in other types of IP violations covering trademarks and patents, in which the offender is always sent before the court.

“Hopefully, when the next copyright act comes along – and a new one is needed for other reasons as well– it won’t allow negotiation. This practice breeds and encourages corruption.

Every infringer prefers to pay instead of facing the judge and having a criminal record. The present Copyright Act is 18 years old and technologies have advanced; it is outdated,” said the officer.

“As for live performances, whether it is an individual or band, they also need permission from the rights owner to perform their music. Theoretically, if they don’t have permission the police can arrest them (upon a request from the injured party) and also seize their instruments and other equipment.

However, it is highly unlikely this will happen in Thailand because the authorities don’t like to take an action that might result in a disturbance or even a riot.

“Imagine if there are thousands of fans in a concert hall or stadium, if police arrest the performers on the stage in the middle of the song. But according to the law, it is possible.

“To collect evidence we can copy the illegally played music at the establishment on a CD or thumb drive and present it to the court. We can also seize CDs and music DVDs they are using. The police may also seize equipment like television sets, monitors, speakers and other sound and video equipment, karaoke machines, computers and so on. I can’t tell you what is done with it afterwards.

“However, this is actually up to the discretion of the police officers, because they have other alternatives for collecting evidence as I already mentioned.

Sometimes the authorities don’t really want to seize the equipment, which might be difficult to remove from the premises, but the copyright owner might insist that they do so. “The copyright owner or his/her representative who possess the power of attorney must inform the authorities about the alleged infringer and accompany them to the location. They have absolutely no right to enter the premises on their own and detain anyone or confiscate any equipment,” the police officer stressed.

A search warrant isn’t needed if it is a public place, he added. Penalties for playing copyrighted music without permission in a public place range from 20,000 up to 200,000 baht. If someone commits a second offence within five years after being discharged, he or she is subject to double the prescribed penalties.

“If the offence is committed for commercial purposes the offender is subject to imprisonment of six months up to four years, or a fine from 100,000 up to 800,000 baht, or both.” The policeman said the relatively steep fines and prison terms are meant to discourage and reduce the infringements, but added that he doesn’t think this is the actual case, perhaps because of the right to negotiate.

The copyright law also covers pirated CDs and music DVDs sold on the street and elsewhere, but in this case the copyright owners have to be present during the raid.

“Music older than 50 years is in the public domain and anyone can play it, anywhere. But do you think that patrons at Patpong and big discotheques like to listen to hits from the 1950s or 1960s? I don’t think so.

“The music companies have a trick to get around the 50-year clause. Maybe one or two years before the copyright expires, they will use other artists to record the new version of the same song or music and from that time it will be protected for another 50 years.

“It should be noted that under the law you cannot play copyrighted CDs or music DVDs you have bought from a store in public, but only in the privacy of your home,” said the officer.

“Concerning extortionists, in most cases they won’t say that they are the authorities, or the copyright owner or their representative. They will say, ‘If you don’t pay me then I will return with the police.’ “Everyone who plays copyrighted music in public should pay royalties as this is the law but very few actually do. Some small shops or vendors selling food, for example, couldn’t survive if they had to pay royalties, and maybe half of these don’t know anything about royalties.

“The music companies want money, so they won’t get involved with people who are poor and can’t pay. Therefore, the copyright owners go after the big venues which have money.” The policeman said that if the music copyright infringement occurs in the metropolitan Bangkok area or the five adjoining provinces of Samut Prakan, Pathum Thani, Nakhon Pathon, Samut Sakhon and Nonthaburi, then the case go to the Central IP & IT Court. If the offence is committed in other provinces the provincial courts will handle it.

POLICE Colonel Krisada Kanchana-alongkorn is involved in the suppression of IP infringements at the ECD. He said that local police officers have the jurisdiction to enforce copyright laws but the owners must report violations to the police themselves.

The Colonel also confirmed that the Copyright Act covers live performances. He said that police normally seize music DVDs, TV sets and so on, but probably not sound equipment which is fully installed and hard to remove.

When asked if there is any type of music that can be played without breaking copyright laws, the Colonel said: “Strictly speaking, there should not be any copyrighted music played for commercial purposes. It really depends on the copyright owners whether they are serious to protect their rights and benefits.”

View of formermusic company staff

SPEAKING anonymously, a former employee of a large Thai music company explained what happened when its inspectors turned up at entertainment venues in Bangkok and the provinces.

“Most of the karaoke outlets, restaurants and lounges know about the copyright law and that they have to pay royalties, but most of them won’t pay. There are many such places all over Thailand.

“Inspectors are sent to investigate those identified as violators. If they can’t produce a royalty payment license, or refuse to pay the royalties – which is usually the case – they get a warning. Inspectors can’t arrest anyone or seize any equipment; only the police can do that.

“If it is a small venue, our manager will usually let them play our songs without paying. He doesn’t want to prosecute them if they are poor. However, for a large establishment, he will contact the local police with a request to arrest the offender.

“Venues that pay the royalties are given an official CD or DVD (various packages and prices are available), which can’t be obtained anywhere else. They will also receive a certificate to confirm they have paid the royalties.

“When one of the inspectors began to report fewer offenders and the amount in royalties went down, the manager got on the case and discovered that the inspector was taking bribes from various places. He was fired immediately. It also turned out that the inspector was working with a policeman. They split the bribes 50 – 50.”